Who supports a constitutional amendment?

16 states – Colorado, Montana, Oregon, Delaware, Illinois, Maine, West Virginia, New Jersey, Connecticut, Massachusetts, California, Hawaii, Maryland, New Mexico, Rhode Island, and Vermont – have called for Congress to propose a constitutional amendment through their state legislature or by ballot question vote.

More than 2 million people have signed petitions in support of an amendment.

Is a constitutional amendment really necessary?

Government by the people is increasingly under attack by big money in politics. Thanks to the Supreme Court’s decision in Citizens United v. Federal Election Commission (2010), corporations can now spend unlimited amounts of money to influence our elections, adding to the increasing amounts spent by billionaires and other special interests. SuperPACs and other outside groups spent upwards of $1.3 billion to influence the 2012 federal elections—over 3 times more than in either 2008 or 2010. Federal candidates and their parties spent another $5 billion more on top of that. This avalanche of money means our elected representatives are increasingly beholden to the biggest donors rather than to the voters. That is no way to run a democracy.

To make matters worse, in Citizens United and other decisions, the Supreme Court has ruled that corporations are entitled to the same constitutional rights of people. Using this assertion, the Court has struck down hundreds of local, state, and federal laws protecting our democracy, our health, and our safety. For example: The Court overturned a law banning corporate funding of ballot question campaigns right here Massachusetts; ruled that the USDA cannot inspect any meat slaughter or packing facility without an appointment; nullified state laws requiring the food industry to disclose all of the ingredients in our foods; and often declares that advertising is “free speech,” preventing our communities from banning cigarette advertising near schools (See Boston Globe, In a win for tobacco companies, judge rules against Worcester ban on cigarette advertising). But corporations are not people. They don’t die, work two jobs to make ends meet, or stand in harm’s way for the nation. They certainly shouldn't have more rights than we do, which is how the court’s ruling works in practice. The idea of corporate free speech would have been shocking to the Founders and it should be shocking to us!

Because Citizens United and other decisions are based on the Supreme Court’s interpretation of the Constitution, only a constitutional amendment can undo them and ensure that government works for us—not just for corporations and wealthy interests that pay for political campaigns. A constitutional amendment will protect sensible campaign finance laws as well as safeguard laws that keep us safe and healthy.

Isn’t a corporation an association of people? Why shouldn’t it have constitutional rights?

A corporation is not an ordinary association of people; it is a government created structure for doing business, and it exists only by statute.[1] In 1819, Supreme Court Chief Justice John Marshall described a corporation, as a “mere creature of law…possessing only those properties which the charter confers upon it.”[2] Corporations are established by government and have some legal privileges well beyond those of a natural person—limited liability, perpetual life, and more. In his dissent to the majority opinion in Citizens United Justice John Paul Stevens wrote that corporations “are not themselves members of ‘We the People’ by whom and for whom our Constitution was established.”

To claim that the Bill of Rights applies to “we the corporations” as well as “we the people” is contrary to its original intent and just plain wrong. The Framers were well aware of the dangers of wealthy interests taking over government. That is exactly why they chartered only a few corporations and strictly regulated them. In fact, the idea that corporations are entitled to constitutional rights is only a few decades old and is a product of a deliberate campaign to reverse government regulation.[3] If corporations didn’t have these recent protections under the Bill of Rights, they would remain perfectly functional (and still very powerful). But they could no longer bulldoze public interest laws and overwhelm the checks and balances that make democracy work.

Unions, nonprofits, and news organizations are corporations too. How would this amendment affect these organizations?

Non-profit organizations and unions could advocate for the rights of their members long before the courts gave corporations constitutional rights. The Supreme Court has recognized this repeatedly. For example, the Supreme Court in NAACP v. Alabama (1958) rejected the suggestion that the NAACP could assert constitutional rights independently of its members, but nonetheless concluded that the NAACP had standing to assert the constitutional rights of its members to strike down a state mandate to disclose its membership list.[4]

If a constitutional amendment were passed, we would merely go back to this method of analyzing rights. For example, the government could not compel prayer in a private university because it would infringe the First Amendment rights of the faculty and students, not because it infringes the First Amendment rights of the incorporated university. Similarly, government seizure of Google servers containing confidential personal information would violate the Fourth Amendment rights of Google users, not the Fourth Amendment rights of the Google Corporation. The content of the Boston Globe would be protected, not because it is a corporation, but because of the “free press” clause in the First Amendment.

The view that protecting the rights of natural persons requires us to recognize independent constitutional rights of artificial persons is not only mistaken, but ultimately serves to dilute the rights of real persons. It does so by thwarting efforts by the people, through their elected representatives, to regulate corporate economic activity in order to protect the rights and interests of real people, not just in the area of campaign finance, but with respect to the environment, consumer protection, the health and safety of workers, and the integrity of our food supply.[5]

Didn’t the Massachusetts state legislature pass a resolution calling for a constitutional amendment?

In an overwhelming bipartisan victory, both chambers of the Massachusetts legislature passed resolutions calling on Congress for a constitutional amendment, by a voice vote in the House with no objections and in the Senate by a roll call vote of 35 to 1. In the Senate, all Republicans joined in approving the resolution. With these resolutions, the state legislature has made clear its support for a constitutional amendment as well as its negative opinion of Citizens United and the undue influence of money in politics.

A local resolution is an opportunity for governing bodies at the city and town level to reinforce the state legislature’s action. Amending the Constitution is no easy task and we need every level of government to voice their support.

What is the process to pass a constitutional amendment?

All 27 amendments to today’s US constitution were proposed by a 2/3 vote of both houses of Congress and then ratified by 3/4 of the state legislatures. Alternatively, amendments can be proposed and ratified by a combination of national and state constitutional conventions.

What did the Court decide in the Citizens United ruling? How did the Court arrive at Citizens United?

In its 5-4 decision in Citizens United v. Federal Elections Commission (2010), the Supreme Court decided that corporate expenditures in elections constitute constitutionally protected “free speech.” By doing so, it overturned portions of the Bipartisan Campaign Reform Act (BCRA) as well as decades-old campaign finance laws restricting election spending by corporations, unions, and other special interests. The ruling has also dramatically expanded a “corporate rights” doctrine that has distorted First Amendment jurisprudence by expanding constitutional rights to corporate entities that were never intended to enjoy the constitutional protections reserved for “We the People.”

The Federal Election Campaign Act (FECA) of 1974 was the first attempt at modern day campaign finance regulation for federal elections. The act established the Federal Elections Commission, the federal campaign finance enforcement agency, and capped or restricted political contributions and independent expenditures for individuals, corporations, and unions. Two years later, the Supreme Court struck down parts of FECA in Buckley v. Valeo (1976) deeming that laws capping independent expenditures for individuals are an abridgment of free speech. In Citizens United the Court applied the same logic to void provisions of FECA and BCRA restricting independent expenditures paid by corporate and union treasury funds.

What are independent expenditures? How are they different from contributions?

An independent expenditure is:

A political campaign “communication” (like an advertisement or commercial) that expressly advocates the election or defeat of a clearly identified candidate, but is not made in cooperation or consultation with the candidate, the candidate’s party, or the candidate’s political action committee (PAC). In other words an independent expenditure is spending on behalf of a candidate.

A contribution is:

Any political spending at the specific request of a candidate, party, or action committee. In other words a contribution is given directly to a candidate or a candidate’s affiliates.

What are SuperPACs?

The District of Columbia Circuit Court of Appeals in Speechnow.org v. Federal Elections Commission (2010) applied the Citizens United decision to strike down limits on donations to PACs that make only independent expenditures. This ruling gave rise to what are now commonly known as SuperPACs, political action committees that only make independent expenditures. They can legally accept and spend unlimited donations from individuals, corporations, and unions. Although they may not “coordinate” their activities with candidates’ campaigns, they are very often run by former staff members from the campaign that the SuperPAC is supporting. Political comedian Steven Colbert has shown how toothless this regulation is with the creation of the Colbert SuperPAC on his television show. Not surprisingly, SuperPACs have quickly established themselves as a major destination of political spending by corporations and the super-rich. SuperPACs are contributing to an arms race of the ultra-wealthy and are drowning out the voice of everybody else.

How has Citizens United affected political spending in elections?

The unprecedented special interest funds pumped into the 2010 elections revealed only the tip of the iceberg of campaign finance post-Citizens United. The 2012 election cycle was a rude awakening to a political system devoid of any real restrictions on campaign finance.

Spending by outside groups was 433% higher in the 2012 election cycle ($1.3 billion) than in the 2008 presidential election. Spending by outside groups was 427% higher in the 2010 election cycle than in the 2006 midterm elections.

Outside spending makes a big difference. In 2010, outside groups backed the winners in 80% of the congressional elections in which power changed hands.

Funding for outside groups comes from a very small group of wealthy individuals and corporations. In 2012 the top 1% of donors to these groups contributed roughly 70% of the total.

How can I help and where can I get more information?

Tell your friends, family, neighbors, and coworkers about the democracy amendment. Make sure they are registered to vote, and are voting for reform. You can volunteer on the campaign by contacting Eric Kashdan at EKashdan@commoncause.org.